ANUP KHARE Vs. CANTONMENT BOARD

JUDGEMENT

(1.) This writ petition has been filed by the petitioner for quashing the impugned charge sheet dated 20.11.2001, the ex-parte departmental enquiry and order of dismissal dated 28.1.2002.

(2.) The case of the petitioner is that he was appointed as Resident Medical Officer (R. M. O. ) in Cantt. General Hospital, Agra on temporary basis in the leave vacancy of Dr. Jai Hari Har Lal on 4.6.1983, and in compliance of the aforesaid appointment letter, the petitioner resumed duty on the post of R. M. O. in Cantt. General Hospital, Cantt. , Agra. In view of the petitioner's academic qualifications, he was given exemption in age. The petitioner always performed his duties honestly, faithfully and diligently to the entire satisfaction of his superiors. The petitioner was absorbed on the post of R. M. O. in the Cantt. General Hospital, Agra after the retirement of Dr. Jai Hari Har Lal w. e. f. 1.1.1986 on permanent basis. The services of the petitioner are governed by the Cantonment Fund Servant Rules, 1937. As per the said rules, all appointments on supervisory posts were to be made by the Board and on non-supervisory posts by the Executive Officer. The post of R. M. O. comes within the definition of supervisory post. As per rule 6 of the service rule, the maximum period of probation expired on 1.1.1989, which was not extended, hence the petitioner stood automatically confirmed on the post of R. M. O. The petitioner was also given higher pay scale of R. M. O. vide letter dated 29.5.1990. The petitioner was never awarded any major or minor punishment during 18 years of service in the Cantonment Board, Agra. Mr. Rajeev Srivastava, the CEO, Cantonment Board, Agra got annoyed with the petitioner as the petitioner did not submit to his illegal wishes and with a view to take revenge from the petitioner, the petitioner was declared as unconfirmed vide order dated 5.12.2001 without any notice and opportunity. The CEO also refused the medical leave of the petitioner from 20.11.2001 to 27.11.2001 and then from 12.12.2001 to onwards and directed the petitioner to appear before the Chief Medical Officer, Agra for medical check-up on 24.12.2001 and simultaneously instituted departmental proceedings. Mr. Rajeev Srivastava, CEO was neither the appointing authority nor the disciplinary authority of the petitioner but still issued a charge-sheet dated 20.11.2001, against which the petitioner submitted representations dated 10.12.2001 and 8.1.2002 before the Principal Director, Defense Lands and Ceiling, Central Command, Lucknow through proper channel which are still pending for disposal. The aforesaid representations further annoyed Mr. Rajeev Srivastava, CEO, Cantonment Board, Agra. Mr. P. K. Sharma, Joint CEO, Cantonment Board, Agra was appointed as Enquiry Officer, who was inferior in rank, status and subordinate to Mr. Rajeev Srivastava. The condition of the petitioner was critical w. e. f. 12.12.2001 and he was referred to Delhi at Sir Ganga Ram Hospital and was advised admission and rest. The Enquiry Officer fixed 24.12.2001 for departmental enquiry which was communicated to the petitioner on 22.12.2001 but the petitioner choose to go Delhi at Sir Ganga Ram Hospital as his condition was deteriorating. The petitioner's wife approached the Enquiry Officer to adjourn the hearing of the departmental enquiry which was not adjourned. An ex-parte enquiry under the influence and pressure of Mr. Rajeev Srivastava, CEO was conducted. The Enquiry Officer did not examine any of the oral or documentary evidence and did not provide any opportunity to the petitioner to lead defence evidence. The petitioner was not supplied with the copy of the enquiry report and the copy of the impugned order dated 28.1.2002. The petitioner was dismissed from service vide order dated 28.1.2002 on the basis of ex-parte enquiry report. The impugned orders as well as the acts of the respondents are illegal, arbitrary, without jurisdiction, unconstitutional, malafide and void from very inception. Hence this writ petition.

(3.) In the counter affidavit, it has been stated that the petitioner was never appointed as R. M. O. in Cantt. General Hospital, Agra. The post of R. M. O. is a supervisory post and is in the nature of head of the hospital. The senior most doctor of the Cantt. General Hospital in service of Cantonment Board can be appointed as R. M. O. by the Cantonment Board under prescribed rules. The petitioner was appointed as Medical Officer by his appointing authority i. e. the Cantonment Executive Officer under rule 7(1) of Cantonment Fund Servant Rules, 1937 for a period of three months w. e. f. 4.6.1983, on purely temporary basis against the leave vacancy of the regular medical officer Dr. Jai Hari Har Lal. It has been denied that the age exemption to the petitioner was granted on the basis of his academic qualifications. The petitioner has remained on long stretches of leave on various occasions during his service period due to which the medical facilities to the general public were adversely affected. The time bound financial benefits were granted to the petitioner. The petitioner was never absorbed on the post of R. M. O. in Cantonment General Hospital. The petitioner was appointed on leave vacancy on temporary basis so there was no question of probation or its extension. The allegations made against Mr. Rajeev Srivastava are malafide. The CEO is the appointing authority of the petitioner. The leave application of the petitioner was not allowed due to his frequent absence and his entitlement. The petitioner was often found to be absent during duty hours as mentioned in the charge-sheet. The petitioner was required to appear before the Chief Medical Officer, Agra for second medical opinion which was considered essential by the CEO/Controlling authority under the leave rules. The petitioner was found to be running a personal clinic and engaged in private practice during the so called illness for which he had submitted medical certificate for leave. The petitioner continued to attend the patients at his private clinic at his residence at Lauries Hotel, M. G. Road, Agra and also performed surgical operation in several Nursing homes in Agra during his stated medical illness. The petitioner's services were temporary in nature hence the petitioner was not entitled to the leave claimed by him. The petitioner has not participated in the disciplinary proceedings and deliberately avoided thereby attempting to obstruct the disciplinary proceedings. The petitioner was afforded opportunities to submit his reply against the memorandum of charges. The petitioner was never admitted to Sir Ganga Ram Hospital for his treatment as he attended private patients on the same date at Agra and a copy of the prescription issued by the petitioner from his private clinic on 24.12.2001 has been filed as Annexure C. A. -7. The petitioner never sought adjournment of disciplinary proceedings from the Enquiry Authority nor submitted the medical certificate to the Enquiry Officer. The petitioner was given another opportunity by the Enquiry Officer but he again again failed to appear before the Enquiry Officer, hence the Enquiry Officer concluded the enquiry on 24.12.2001 and submitted its report to the Disciplinary Authority.